DOCTOR'S ORDERSWND Exclusive

Obamacare's fate in hands of Supreme Court?

If affirmed, 'What human activity would escape federal power?'

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

Obamacare, the president’s signature law that requires Americans to pay penalties if they refuse to participate in government-mandated “interstate commerce” by buying health insurance, has reached the U.S. Supreme Court.

“Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause,” said the petition for certiorari from the Thomas More Law Center.

The organization has been battling on behalf of individual citizens against the government demand that all citizens purchase government-specified health insurance or pay massive penalties since shortly after the law was signed by President Obama more than a year ago.

Graphic of Obamacare posted by House Speaker John Boehner

The center, a national public interest law firm based in Ann Arbor, Mich., said today that its appeal to the Supreme Court was the first among the many cases challenging Obamacare to reach the high court.

The petition, coauthored by attorney David Yerushalmi, followed the divided ruling from the 6th U.S. Circuit Court of Appeals that the law was constitutional.

The “Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity,” the majority said. “Further, far from regulating inactivity, the provision regulates active participation in the health care market. … as long as Congress does not exceed the established limits of its commerce power, there is no constitutional impediment to enacting legislation that could be characterized as regulating inactivity.”

The two-judge majority said those who refuse to buy insurance are an obstacle for Congress.

“Self-insuring individuals are attempting to fulfill their own demand for a commodity rather than resort to the market and are thereby thwarting Congress’s efforts to stabilize prices,” the judges opined.

In a strongly worded dissent, Judge James Graham, an appointee of President Ronald Reagan, said, however, “If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? … To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit.”

The Thomas More Law Center’s case against Obama’s Patient Protection and Affordable Care Act was the first case of dozens on the controversial proposal decided by a federal appellate court.

The petition warns, “If [Obamacare] is understood to fall within Congress’s Commerce Clause authority, the federal government will have absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law.”

Even the judges on the 6th Circuit said the Supreme Court needed to act.

“I believe the [Supreme] Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so,” said the opinion.

The government will now have 30 days to file a response, and the law center will have approximately 10 days to file a reply. The case will then be submitted to a conference for a decision by the justices as to whether the petition should be granted. If granted, the case will in all likelihood be briefed, argued and decided in the upcoming term, with a decision rendered prior to the court recessing next summer.

The petition, coauthored by Robert Muise of the Thomas More Law Center, said, “When Congress acts beyond [constitutional] limits, as here, the judicial branch should exercise its authority as the guardian of our Constitution and enjoin the ultra vires acts.”

The case was brought on behalf of the Law Center and individuals Jann DeMars, John Ceci, Steven Hyder and Salina Hyder.

It explains that even the Congressional Budget Office noted, “The government has never required people to buy an good or service as a condition of lawful residence in the United States.”

It cites the Supreme Court’s own decision regarding the Gun-Free School Zone Act of 1990, which criminalized possession of a gun within a statutorily defined school zone.

“It is worth a moment’s pause here to follow the court’s reasoning in rejecting the Commerce Clause’s reach into this domain of non-commercial activity,” the center petition said.

At the time, the high court found:

The government admits, under its ‘costs of crime’ reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the government’s ‘national productivity’ reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the government presents … it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign. Thus, if we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

Obamacare “does not regulate economic activity, but rather the decision to not engage in commercial or economic activity,” the Law Center said. “Consequently, the act does not even pretend to fit within any of the court’s previous Commerce Clause rulings.

“The individual mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing. This resident, quite literally, merely exists. … In this case, we have neither economics nor activities.”

It continued, “The national government is restrained and constrained by federalism not to go beyond its descreet and enumerated powers. This … was described by the court as a ‘first principle.’ Under the Commerce Clause, Congress is limited to regulating at the far reaches of its authority only local economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”

Obama’s plan, which effectively nationalizes health-care decision-making, “represents an unprecedented encroachment on the liberty of all Americans, including plaintiffs, by imposing unprecedented governmental mandates that restrict their personal and economic freedoms,” the law center argued in its appeal brief.

It continued, “When Congress acts beyond those limits, as here, the judicial branch must exercise its authority as the guardian of our Constitution and enjoin the illicit acts. For the first time in our history, Congress has cited the Commerce Clause as authority to regulate a man or woman sitting in the privacy of his or her own home doing absolutely nothing but ‘living’ and ‘breathing.'”

“The passage of the health care act opened the eyes of many previously apathetic citizens, making them aware of the rapidly expanding scope and influence of the federal government and its intrusiveness into their everyday lives,” he explained.

“They intuitively understand that requiring them to purchase health insurance falls far beyond the powers granted to Congress by the Constitution. Suddenly awake and alarmed by the fact that the federal government has grown so far out of control, and frustrated by what they see as the lack of responsiveness by politicians in D.C., many Americans find themselves looking for answers,” he said.

If the case is accepted, there undoubtedly will be arguments over whether Elena Kagan, appointed to the bench by Obama, should take part in the case.

The emails also suggested that there were discussions by telephone on the issue. And when her nomination to the high court was announced, she emailed to others, “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”